Jim Crow's Enduring Legacy from Jim Crow to Civil Rights: the Supreme Court and the Struggle for Racial Equality by Michael J

Stanford Law Review

Jim Crow's Enduring Legacy From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality by Michael J. Klarman Review by: Clayborne Carson Stanford Law Review, Vol. 57, No. 4 (Mar., 2005), pp. 1243-1250 Published by: Stanford Law Review Stable URL: http://www.jstor.org/stable/40040248 . Accessed: 29/09/2014 14:15

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This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions Book Review JimCrow's EnduringLegacy

ClaybomeCarson* FromJim Crow to Civil Rights:The SupremeCourt and the Struggle for Racial Equality. By MichaelJ. Klarman. New York: Oxford University Press,2004.

Scholarswriting about black-white relations in theUnited States typically offereither optimistic or pessimisticnarratives. The formeremphasize racial progress- the gradualrealization of Americanegalitarian and democratic ideals,which is variouslyattributed to the heroic efforts of idealistic reformers, mass protestmovements, foreign policy considerations, or the impersonal forcesof modernization.American history, and especiallyAfrican American history,is understoodas a progressionfrom slavery to freedom,from pervasive racial segregationand discriminationto landmarkcivil rightsreforms and affirmativeaction policies. The pessimistsin contrastcall attentionto the persistenceof racial conflict,segregation, discrimination, and inequality. Althoughmilitary force, civil rightslegislation, and federalcourt decisions overcameslavery and the southern Jim Crow system, the pessimists point out thatwhite Americans still exercise political dominance on mostissues of racial salience,still generally have bettereducational and economicopportunities thando black Americans,and stilloften resist concerted efforts to reduce longstandingracial inequalities. Michael Klarman's From Jim Crow to Civil Rightsis on thepessimistic side of thespectrum, offering a strong critique of thetendency of somecivil rights advocates to relytoo muchon civilrights litigationwhile ignoring broader social issues. Duringthe twentiethcentury, Martin Luther King, Jr.,became the prototypicalracial optimist, while Malcolm X was usuallyassigned the role of his pessimisticantagonist. King's optimismwas most famouslyexpressed

Clayborne Carson is directorof the Martin Luther King, Jr.,Papers Project and a professorof historyat StanfordUniversity. He is senior editor of The Papers of Martin Luther King, Jr. (5 vols., 1992-2005) and coauthor of African American Lives: The Struggle for Freedom (2004).

1243

This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions 1244 STANFORDLAW REVIEW [Vol.57:1243 whenhe announcedat the 1963March on Washingtonthat this nation would "oneday . . . riseup andlive out the true meaning of its creed: 'We holdthese truthsto be self-evident,that all menare createdequal.'"1 Malcolm X, forhis part,was skepticalthat such a day would ever come. He ridiculedthe Washington"picnic" as a sell-outby King and other major civil rights leaders. But bothmen's views evolvedover timeas King came to understandthat Malcolm'sharsh rhetoric "came into being as a resultof a societythat gives so manyNegroes the nagging sense of 'nobody-ness.'"2By theend of his life, Kingagreed with the 1968 prediction of the National Advisory Commission on CivilDisorders that the United States was "movingtoward two societies, one black,one white - separateand unequal."3 In theyears since King's assassination, the literature of themodern African Americanfreedom struggle has expandedenormously, and optimistic scholars have outnumberedpessimists. It is notdifficult for optimists to pointto the substantialchanges in race relations that have occurred during the past century. Lynchingand other forms of racist violence no longerdeter African Americans fromexercising their civil rights. Segregation is no longerlegally mandated or allowedin publicschools, restaurants, hotels, and otherplaces. Overtracial discriminationand explicit barriers to blacksuffrage are prohibited throughout theUnited States. Significant changes have also occurredin theracial attitudes ofwhite Americans. But pessimistscould point to thepersistence of whitesupremacy in the post-civilrights era. Even in the twenty-first century, black Americans continue to feel the impactof whitepolitical dominance, even if thatdominance is exercisedthrough dramatically increased incarceration rates rather than through lynchmobs and JimCrow laws. During the four decades since the passage of theVoting Rights Act of 1965,the expansion of black suffrage has beenoffset by a majorshift in thepolitical and ideologicalallegiances of southernwhite votersfrom a New Deal-orientedDemocratic Party to an increasingly conservativeRepublican Party. Black voters have generally continued to favor Democraticpresidential candidates, but no such candidatesince Lyndon Johnsonhas attractedthe support of themajority of whitevoters. In thelarge sectionsof theSouth and Westthat are now dominatedby theRepublicans, candidatessupported by blackvoters rarely prevail. Republican dominance in nationalpolitics has resultedin a shiftaway fromJohnson's Great Society policies.An ideologicalgulf now separatesthe majority of blackvoters from

1. MartinLuther King, Jr.,Speech at the March on Washington(Aug. 28, 1963), reprintedin A Call to Conscience: The Landmark Speeches of Dr. Martin Luther King,Jr. 75, 87 (ClayborneCarson & KrisSheppard eds., 2001). 2. The Autobiographyof Martin Luther King, Jr. 266 (ClaybomeCarson ed., 1998). 3. Nat'l Advisory Comm'n on Civil Disorders, Report of the National AdvisoryCommission on Civil Disorders 1 (1968).

This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions March2005] JIMCROW'S ENDURING LEGACY 1245 thewhite majority regarding the role of governmentin respondingto social needs. Criticalrace theorists are amongthe dissenters who haveargued that the indicationsof civil rights progress have obscured underlying continuities inthe institutionalfoundations of whitesupremacy. These theoristsquestion the notionthat laws prohibitingindividual acts of discriminationcan reverse patternsof racialdominance that are subtle(sometimes the consequenceof ostensiblyegalitarian legal principles), institutionalized (therefore impersonal), and historicallyentrenched (therefore beyond the reach of normallegal remedies).Derrick A. Bell, Jr.,a pioneerin the field,has suggestedin his writingsthat civil rights litigation and legislation are unlikely to resultin major enduringgains because white Americans will effectively resist any substantial threatto theirdominance. More than two decades ago, Bell criticizedschool desegregationlitigation, arguing that litigants "who fail to obtainjudicial relief thatreasonably promises to improvethe educationof black childrenserve poorlyboth their clients and theircause."4 Bell's recentSilent Covenants: Brownv. Boardof Educationand the UnfulfilledHopes for Racial Reform extendsthis critique by deprecatingthe gains that have been attributed to the pasthalf-century oflitigation to achieve school desegregation.5 MichaelJ. Klarman pays little attention to thecontributions of the critical race theorists,but his importantstudy provides considerable ammunition for theracial pessimists. Rather than simply offering a critique of mainstream legal thought,he providesa wealthof historicalevidence that will informthe ongoingdebate concerning the relationshipbetween civil rightslaw and contemporaryAmerican race relations. This thoroughly documented survey of civil rightslitigation in the twentiethcentury is a stunningachievement, sheddingnew light on topicsthat have already drawn the attention of several generationsof scholars.Like otherscholars, Klarman focuses on thedecades- longstruggle of ThurgoodMarshall and other NAACP lawyersto bringabout theSupreme Court's historic Brown v. Board of Education6decision, but he correctsthe tendency of somescholars in thefield to equateprogress in black- whiterelations with changes in nationalcivil rights law. Moreover,Klarman breaksnew ground by broadening his inquiry to examinea widerange of race- relationsrulings by the SupremeCourt and to assess the indirectand unintendedconsequences of theserulings as well as thedirect and intended ones. FromJim Crow to CivilRights is a workof enormousambition and

4. DerrickA. Bell, ServingTwo Masters:Integration Ideals and ClientInterests in School DesegregationLitigation, 85 Yale L.J.470, 514-15 (1976), reprintedin Critical Race Theory: The Key Writings That Formed the Movement 5, 18 (Kimberle Crenshowet al. eds., 1995). 5. Derrick A. Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform(2004). 6. 347 U.S. 483 (1954).

This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions 1246 STANFORDLAW REVIEW [Vol.57:1243 erudition.It is certainto have lastinginfluence on futurescholarship in the fieldsof constitutional law and the history of American race relations. Klarmanfirst proposes to explainhow the Supreme Court shifted from an acceptanceof the separate-but-equalprinciple in its Plessy v. Ferguson1 decisionto a rejectionof that principle in itsBrown decision. His answerto this questionis hardlyoriginal - "judicialdecision making involves a combination of legal and politicalfactors" (p. 5)- but thisconclusion is supportedby carefulexaminations of dozensof SupremeCourt rulings in theyears from Plessy to Brown. Rejectinglegal formalism,Klarman argues that the indeterminacyof constitutional law on questionsof raceencourages judges to resolvethese questions in waysthat conform to prevailingsocial moresand practices(p. 5). Ratherthan emphasizing the egalitarian values embedded in the Americanpolitical tradition,Klarman recognizes that American egalitarianismhas always been intertwined with pervasive racist oppression. As the historianEdmund Morgan insistedin AmericanSlavery, American Freedom,the egalitarian and democratic principles that have been central to the historyof the United States have been realized for white Americans through the subjectionof AfricanAmericans and other nonwhite people 8 Thus,traditional Americanconceptions of equality and civil rights could never be isolatedfrom theongoing reality of white supremacy and black subjection. An optimisticreading of civilrights litigation would stress the progression trendin SupremeCourt decisions in thecentury and a halfsince Dred Scottv. Sandford,9which held thatAfrican Americans were neverintended to be among"the People" envisagedas citizensby the Constitution.Brown drew uponthe subsequent Fourteenth Amendment to insistthat African Americans wereentitled to "theequal protectionof thelaws,"10 but the Supreme Court majorityin Dred Scottwas correct,historically ifnot morally, in assertingthat theFounders considered African Americans to be "a subordinateand inferior class of beings,who had beensubjugated by thedominant race, and, whether emancipatedor not, yet remained subject to their authority, and had no rightsor privilegesbut such as thosewho heldthe power and thegovernment might chooseto grant them."1 * Brown was reasonableconstitutional interpretation in light of the FourteenthAmendment, but this ruling may have actually strayed further from theprinciple of originalintent than did Dred Scott.As Klarmanpersuasively argues,"[t]o the justices who were most committed to traditionallegal sources, suchas text,original intent, precedent, and custom, Brown should have been an easycase - forsustaining school segregation" (p. 447). He surmisesthat only

7. 163 U.S. 537(1896). 8. EdmundMorgan, AmericanSlavery, AmericanFreedom ( 1975). 9. 60 U.S. 393(1857). 10. 347 U.S. at 495. 11. 60 U.S. at 404-05.

This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions March2005] JIM CROW'S ENDURINGLEGACY 1247 fourof thenine SupremeCourt Justices would have favoredoverturning Plessy whenthe NAACP's school desegregationsuits were firstconsidered in 1952 (p. 300). The FourteenthAmendment was by no means a clear basis for overturningschool segregation,since, as Klarman points out, "the same Congress thatwrote the FourteenthAmendment and was responsiblefor its enforcementhad segregatedschools in the Districtof Columbia fornearly one hundred years, which implied that it considered segregation to be constitutional"(p. 294). Klarman suggeststhat the major factorcausing the shiftfrom a dividedCourt to theunanimous Brown ruling was the intrusionof politicalconsiderations into judicial decisionmaking.The Justiceswere aware of the changes in Americanrace relationsand in the positionof the United States in world affairsthat had resultedfrom World War II. They were also aware thata rulingby a dividedcourt would encouragesouthern resistance to thedecision (p. 302). Klarman devotes careful attentionto the dilemma of Justice Felix Frankfurter,who consistentlyrejected the notion of judges "reading their personal values into the Constitution"(p. 303) yet also "abhorredracial segregation"(p. 304). Even Frankfurter,however, recognized the significance of the changesthat had occurredin Americanracial relationsand attitudesin the postwaryears. Furthermore,Klarman argues, the justices were part of a culturalelite that was even more likely than the majorityof Americansto acceptnotions of racial equality(p. 309). He reportsthat of the SupremeCourt clerks,only William Rehnquist "seems to have favoredreaffirming Plessy" (p. 309). Whenthe Justices finally agreed to overturnPlessy, they understood that their decision was not mandatedby a strictconstruction of constitutional language, nor would it immediatelytransform American race relations. Frankfurterwarned that a desegregationdecision was "'not a wand by which thesetransformations can be accomplished'"(p. 311). To argue thateven SupremeCourt Justicespay attentionto politicaland social realities should hardly surpriseanyone familiarwith contemporary scholarship in the field of constitutionallaw. The cautious process of implementingthe Brown decision during the subsequentfive decades provides ample evidence of legal realismin Court decisionmaking.It is perhapsmore remarkablethat breaks with precedent such as Brown quickly become precedentsfor a new generationof legal formalists.Klarman suggeststhat betweenthe extremes of legal formalismand legal realism- and betweenstrict constructionismand judicial activism- lies a middleposition: Whenthe law is clear,judges will generally follow it, unless they have very strongpersonal preferences to thecontrary. When the law is indeterminate, judges have littlechoice but to makedecisions based on politicalfactors. Moreover,different judges accorddifferent weights to thesetwo axes, and somejudges maydeem a particularfactor in decisionmaking to be legal, whileothers will regardthe same factor as political.Thus, different judges, even whenconfronted with the same legal sourcesand holdingthe same

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personalpreferences, might reach differentlegal interpretationsbecause they prioritizethe legal and politicalaxes differently,(p. 5) But Klarman'sbook wouldnot be as importantas it is if it simplyleft readerswith this sensible synthesis of whathas beensaid by other scholars on thiscontentious topic. In myview, his more important contribution to the civil rightsliterature is his assessmentof the relationshipbetween the Supreme Court'scivil rightsrulings and thecontinuing reality of racialinequality in America.On thisquestion, Klarman has muchto say thatis originaland enlightening.Examining not only SupremeCourt decisionson school segregationbut also decisionsin manyother areas of racerelations, he asks, "How muchdid such Courtdecisions influence the largerworld of race relations?"(p. 4). His answerto thisquestion combines legal, political, and social historyin waysthat enrich each subdiscipline.Rather than separating civil rightslitigation from other aspects of the AfricanAmerican freedom struggle,he recognizestheir interrelationship. "This book analyzes litigation as a distinctmethod of social protestand evaluates its advantagesand disadvantages,"he writes(p. 7). Klarmanreminds readers of thedire situation of AfricanAmericans - and indeedthat of nonwhitesthroughout the world - duringthe period when the SupremeCourt issued its Plessy separate-but-equal ruling. During the 1890s theritual of public lynching - sometimes attracting mobs containing thousands of whites- became an increasinglypopular tool for instillingfear among AfricanAmericans. More thana thousandlynchings took place duringthe 1890s alone. Klarmanquotes the pledge of South Carolina governor "Pitchfork"Ben Tillmanto personally"lead a mobin lynchinga negrowho had committedan assaultupon a whitewoman" (p. 11). In 1898,the brutal overthrowof theblack-supported Republican city government of Wilmington, NorthCarolina, by armed whites signaled the general unwillingness ofsouthern whitesto allow black votersto exercisepolitical power. The failureof PresidentWilliam McKinley to condemnthe Wilmington violence was partof theNorth-South "sectional reconciliation" that encouraged southern politicians to proceedwith efforts to disenfranchisenearly all black voters.In such a context,Klarman asserts, the Plessy decision could hardly have been otherwise. "Even had thesejustices been moreracially egalitarian, their interventions wouldprobably have been inefficacious," hewrites (p. 59). Furthermore,"even enforceableCourt decisions would have had relatively little effect on thelives of southernblacks. Most Jim Crow laws merelydescribed white supremacy; theydid not produce it" (p. 59). Thus,even before the Supreme Court signaled itswillingness to acceptblack disenfranchisement in Williams v. Mississippi^2 whitesoutherners had alreadytaken large steps toward achieving that goal throughthe passage of new laws and throughwidespread violence against AfricanAmericans. "If the Court had invalidatedthe discriminatory

12. 170 U.S. 213 (1898).

This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions March2005] JIM CROW'S ENDURINGLEGACY 1249 administrationof literacytests and orderedplaintiffs registered, the decision would have had littleimpact," Klarman asserts. "Few southernblacks had the moneyto litigatevoting rights cases, and in 1900 therewas no NAACP or any similarorganization to offersupport. The willingnessof whitesto use violence to suppressblack suffragewould have deterredmost blacks fromlitigation" (p. 53). Even with the emergenceof the NAACP and its Legal Defense and Education Fund, the Supreme Court's civil rightsrulings did littleto alter traditionalpatterns of racial oppression.While notingthe NAACP's pioneering legal victories,Klarman calls attentionto factorssuch as the intensityof opponents'resistance, the capacityof the beneficiariesof Courtdecisions to capitalizeon them,the ease withwhich particularrulings are evaded,the availability of sanctionsagainst those who violaterights, the relative attractiveness of particular rights-holders, and the availabilityof lawyers to press claims, (p. 7) Given that southernwhite resistancewas less ferventin areas such as votingthan in desegregationof public schools and otherfacilities, the Supreme Court's Smithv. Allwright13decision had some impacton the southernwhite primarysystem, but even thisbreakthrough "could not thwartthe obstaclesto black votingin therural Deep South.Only the imposition of federalforce could securepolitical equality for most southern blacks. That interventionwas largely a consequenceof the southernblack protestmovement" (p. 253). In general, enforceableSupreme Court decisions on behalfof civil rightsrequired the kind of progress in race relationsthat the decisions were intendedto secure. Klarmanadvises: Litigationis unlikelyto helpthose most desperately in need.We havealready seenthat the justices, reflecting broader social mores, are unlikely to sidewith litigantswho lack significant social standing. Even once litigants secure Court victories,they must have a certainamount of powerin orderto enforce them.. . . Litigationrequires lawyers, economic resources, and somesecurity fromphysical danger, (p. 463) The Browndecision serves as theprincipal test of Klarman'soverall thesis because thatdecision has oftenbeen seen as shapingthe changes that occurred afterwardin Americanrace relations.He concedesthat Brown inspired much of the civil rightsactivism of the following decade (p. 381), but this fact reinforceshis point that it was that activismrather than the decision that broughtabout most of the changes. Moreover,Brown had the unintended consequence of radicalizing the southernwhite opposition to civil rights reform."By encouragingextremism, Brown increased the likelihoodthat once directaction protestdeveloped, it would incitea violentresponse," Klarman observes(p. 385). The modestamount of public school desegregationthat took place in the decade afterBrown might well have occurredin any case: "Brown

13. 321 U.S. 649(1944).

This content downloaded from 171.64.248.221 on Mon, 29 Sep 2014 14:15:49 PM All use subject to JSTOR Terms and Conditions 1250 STANFORDLAW REVIEW [Vol.57:1243 immediatelydesegregated schools in border-statecities, but it was almost completelynullified for a decadein theDeep South"(p. 454). As lateas 1964, morethan ninety-eight percent of all southernblack studentsstill attended segregatedschools (p. 362). Even fourdecades later,most black students throughoutthe nation still attend predominantly black schools.14 If it is true,as Klarmancontends, that "the efficacy of Courtdecisions dependson manysocial and political factors" (p. 462),then what should be the relationshipbetween civil rights litigation and othertactics used to alterthese factors?Although his book abstainsfrom the activist stance of somecritical racetheorists, Klarman offers some broad suggestions that should be helpfulin determiningthe strengthsand limitationsof alternativestrategies for transformingAmerican race relations."Constitutional litigation can only redressthose problems that are grounded in law,"Klarman concludes (p. 461). "Because whitesupremacy depended less on law thanon entrenchedsocial mores,economic power, ideology, and physical violence, the amount of racial changethat litigation could produce was inevitablylimited" (p. 461). Rather thanassuming that civil rights litigation can alterentrenched patterns of racial oppression,he suggeststhat a broaderrange of tacticsis necessary."Sit-ins, FreedomRides, and streetdemonstrations fostered black agency much better thandid litigation, which encouraged blacks to place faith in elite black lawyers andwhite judges rather than in themselves," he writes(p. 467). Because his book is not a generaldiscussion of the modernAfrican Americanfreedom struggle, Klarman can only offerhints of a broader approachto social changethat might prove more effective than reliance on litigation.Certainly, the major civil rights reforms of the mid-1960s were more theresult of mass protests than litigation, but these protests and the urban black insurgenciesthat followed were difficult to sustainand produceda national whitebacklash that was evenmore enduring than was thesouthern Massive Resistancemovement of the1950s. Readers of Klarman'sbook therefore will findlittle cause foroptimism that efforts to overcomeracial inequityand oppressionin the UnitedStates can ever proceedrapidly, given the deep historicalroots of white supremacy.

14. Gary Orfield & ChungmeiLee, Brown at Fifty: King's Dream or Plessy's Nightmare? (2004), available at http://www.civilrightsproject.harvard.edu/research/ reseg04/resegregation04.php.

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